Lawyers often simply refer to certificates of pending litigation as “CPLs” or lis pendens, the latter short for a formal registered Notice of Lis Pendens or, for those jurisdictions that shun Latin terms, a certificate of pending litigation.
A document that is typically registered against the title of a specific and identified interest in real property warning all interested parties of a legal claim involving that real property and the potential jeopardy or change to the actual ownership on title.
In Robinson v Holmes (1914), case often cited as regards CPLs:
“The principle on which registry acts proceed is that an opportunity is afforded to examine as to the title, and a person acquiring land ought to see if there is anything registered against such land, and for that purpose he is assumed to make a complete search in the registry office.
“Whether a search is made or not, the person so acquiring land is bound by the documents that may be registered.
“The registration of the lis pendens by the plaintiff is the means provided for the plaintiff to protect his interests and give notice to other parties that he claimed an interest in the property and was seeking to enforce his rights by action.... (S)uch registration operated as a notice to all parties who were or might become interested in the property.”
In Esquimalt & Nanaimo Railway v Granby Consolidated Mining, the British Columbia Supreme Court used these words:
“The certificate of lis pendens does not create an estate or interest, but is simply a notice that some estate or interest is claimed by the party bringing the action.
“The certificate of lis pendens is a mere allegation of fact, i.e., that an action is pending, and the registration is designed to give notice to persons dealing with the land that some interest therein is called in question.”
In 375069 Alberta Ltd. V 400411 Alberta Ltd. the Alberta Court of Queen’s Bench adopted these words:
"The certificate of lis pendens is simply notice on the title... The certificate of lis pendens does not create an encumbrance or charge or interest on or in the property.
“The right to register a certificate of lis pendens is wholly statutory and merely places on record the historical fact that litigation is pending in respect to a particular parcel of land. The registration operates as actual notice to purchasers but does not create an encumbrance or charge upon the property.
“A certificate of lis pendens is not an encumbrance on land as encumbrance is defined in s. 1(f) of the Land Titles Act, Revised Statutes of Alberta 1980 Chapter L-5.”
The prejudice for a land owner slapped with a CPL is quite real, though, as most lenders or potential buyers will not touch a real property that has the cloud of a CPL hovering over it.
Removing a certificate of pending litigation before trial of the issue can be difficult and mostly set out in relevant legislation. Generally, as stated in Tkalych v Tkalych:
“A lis pendens will be vacated only where it is clear that the plaintiff's claim can in no circumstances give him/her any right in the land. There must be either a certainty that the plaintiff will fail, or it must clearly appear that even if successful in the action the plaintiff cannot get an interest in the land."
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